Tuesday, January 21, 2014

When people think of the challenges facing the South African Police Service (SAPS), matters such as brutality, corruption and poor service delivery typically come to mind. The 2012/13 statistics also revealed that crimes such as car hijacking, along with street, residential and business robberies are on the rise. Furthermore, there have been serious shortcomings at the national leadership level, with a lack of unity among various senior officers.

So when the Civilian Secretariat for Police published the draft Green Paper on Policing for public comment, most people expected to see clear proposals that address these pressing problems.

Some ideas in the Green Paper do speak to the challenges facing the police. For example, regarding corruption the paper states, ‘Dealing with corruption within the police is not just about dealing with the individual cases and people … but is also about making sure systems and processes are able to detect and prevent corruption.’There is also a proposal, however, ‘to investigate the feasibility of implementing the policy resolutions surrounding single policing [sic] in the country.’

The source of these ‘policy resolutions’ is the ANC’s 52nd National Conference, which took place in Polokwane during December 2007, where a number of relevant resolutions were adopted under the broad theme of ‘Peace and Security’. Two of these refer to the idea of a single police service: ‘The constitutional imperative that there should be a Single Police Service should be implemented’ and that ‘The municipal, metro and traffic police, be placed under the command and control of the National Commissioner of the South African Police Service, as a force multiplier.’

In order to justify the inclusion, the Green Paper relies heavily on Section 199(1) of the Constitution of the Republic of South Africa, 1996, which provides for a ‘single police service’. The position of the draft Green Paper is twofold:

Firstly, it holds that the Constitution provides for a single national police service only and that there cannot therefore be any other police service;
Secondly, that the Metropolitan Police Services (MPS) are less accountable than the SAPS, and that there is a need to standardise orientation and training as well as command, control, and discipline. All of this, it is argued, can best be achieved by integrating the MPS with the SAPS.

These arguments are unconvincing on a number of grounds.

The Green Paper fails to mention other relevant sections of the Constitution. For example, it is true that section 199(1) of the Constitution provides for a ‘single police service,’but section 205(1) adds to that by referring to a ‘national police service’. It can therefore be concluded that these two sections, taken together, provide for a ‘single national police service’.

In what is clearly intended to be an additional policing capability, section 206(7) of the Constitution provides for the establishment of ‘municipal police services'. This section states very clearly that national legislation must provide ‘a framework for the establishment, powers, functions and control of municipal police services’.

It is obvious from these provisions that the Constitutional Assembly, which approved the Constitution on 11 October 1996, intended to provide for both a single national police service and for municipal police services. In other words, there should be only one national police service, but there can be any number of municipal police services – as long as they are established in terms of national legislation.

Support for the above interpretation is also provided by the Constitutional Court judgment in Minister of Defence v Potsane and Another in 2001 where Justice Kriegler, who delivered the court’s judgment, interpreted ‘single’ in relation to a ‘single national prosecuting authority’ as follows: ‘I subscribe to the basic contention on behalf of the Minister that section 179, when speaking of a “single” [national prosecuting] authority, does not intend to say “exclusive” or “only” but means to denote the singular, “one”. Where there used to be many, there will now be a single authority.’

As far as ‘national’ is concerned, the court was also clear on how the term should be interpreted: ‘The word “national” in the context of the phrase “single national prosecuting authority” … denotes more clearly that the multiple national prosecuting heads that formerly existed [in South Africa and its so-called homelands] were to be merged into one … the statement does not extend to lesser or other prosecuting authorities. The sentence speaks of the national authority, not those involved in conducting prosecutions on behalf of municipalities or prosecutions in departmental, police or prisons disciplinary proceedings.’

Probably the biggest shortcoming in the Green Paper’s arguments is that it fails to explain how integration into a single agency would reduce problems of corruption, brutality or poor service delivery to communities, or assist in reducing crime. Given the global trend towards policing that it is more responsive to the needs of local communities, this is a significant shortcoming.

Integration of MPS into the SAPS is also likely to lead to a neglect of local crime and the service delivery priorities that are currently driven by Metropolitan governments with their own agencies.

An excellent example of what happens after such integration is the case of the former Railways Police, which became part of the former SA Police (SAP) in 1986. The integration was accompanied by undertakings that with an enlarged SAP, more attention would be given to the rail industry, its property, staff and commuters. Over the next few years quite the opposite happened, and the situation deteriorated to the extent that the rail industry had to employ private security companies. It was only in 2003 that a dedicated railway police capability was established within the SAPS.

It is important that the rationale for the existence of both municipal and national levels of policing be detached from any possible political considerations, and to realise that each have a particular role to play. The White Paper, soon to replace the draft Green Paper, should focus on clarifying these roles, in addition to ensuring that there is proper regulation, control and oversight of all police agencies in South Africa. There is no clear rationale as to how the integration of the MPS into the SAPS would strengthen their front-line supervision, discipline or accountability – particularly since the SAPS is unable to achieve these noble goals at present.

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